Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
9 May 2007

Genital slashing case shows judicial progress

Cutting off someone’s genitals after killing them is a rather extreme course of action to take. However, a few years ago such a course of action might not have led to the conviction of the person involved. The Court may well have acquitted the accused if he had claimed that he was so enraged because of the sexual advances made by his male friend, that he had literally temporarily lost his mind during the killing.

In 1996 in the case of S v Moses, for example, the Cape High Court acquitted Mr. Moses because the judge believed that the accused was so upset by the sexual advances made to him that he killed the deceased in a moment of mental incapacity. At the time, I wondered whether the judge might not have been influenced by his own prejudice and homophobia.

It was therefore good news to read that a similar defence failed recently in the case of Lebogang Mohlakoana, who was yesterday convicted of murder for killing his friend, William Thomas, and cutting off his genitals. News24 reports:

Police discovered Thomas’ naked in a pool of blood in his lounge and his private parts tucked under a dressing table in his bedroom. Thomas’s neighbours had called the police and stopped Mohlakoana from escaping.

Mohlakoana denied guilt on the murder charge, claiming he had acted in self-defence after Thomas made unwelcome sexual advances and tried to attack him with a knife. He testified that he was so “shocked and horrified” about his friend’s death that he could not even look at photos of the bloody murder scene.

I suspect in 1996 it was still possible for a judge to believe that a person could be so traumatized by a sexual advance from a member of the same sex, that he would go totally bossies. Similarly, twenty years earlier a judge may well have accepted evidence by a white man claiming that he killed a black women in a fit of madness after she had made sexual advances towards him,

But given the fact that our Constitution now guarantees equality for all and prohibits discrimination on the basis of sexual orientation, even the most traditional judge would find it difficult to believe a story like that put to the court in the Mohlakoana case.

I suspect this is an example of the way in which constitutional values influence society for the better. When the Constitution contains a prohibition against sexual orientation discrimination, it does more than help gay men and lesbians to claim their rights – it actually helps to educate the judges and members of the public and contribute to a sea change in the broader culture.

Of course, the fact that Mr. Moklakoane and his lawyers thought that this was a credible defence to advance, means that there is still a long way to go before respect for people of different sexual orientation than the statistical norm are taken for granted.

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